Final Order 1

Order Details: Notice of Motion
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HCC010006552020 Presented on : 16012020
Registered on : 16012020
Decided on : 04092021
Duration : Y M D
1 08 18
BEFORE THE CITY CIVIL COURT, MUMBAI
( Court No.14 )
(Presided Over by S. U. Hake)
NOTICE OF MOTION/10275/2020
IN
COMMERCIAL SUIT NO.560 OF 2021
(SHORT CAUSE SUIT NO.42 OF 2019)
1. Mr.Ajay s/o Shyam Hukumchand,
Age: 48 yearsOcc: Business,
Indian Inhabitant at present residing at
Aryan Villa, 10/A Chapel Road,
Bandra(W), Mumbai400 050.
2. Mrs.Shemkala wd/o Shyam Hukumchand,
Age: 65 yearsOcc: Housewife
Indian Inhabitant at present residing at
Aryan Villa, 10/A Chapel Road,
Bandra(W), Mumbai400 050. ..Plaintiffs
Versus
1. M/s. Hygienic Food Product
A Partnership firm
Having their office at Plot No.53,
Ancillary Industrial Estate
Near Deonar Slaughter House,
Opposite Manish Pharmaceuticals
Govandi, Deonar, Mumbai400 043.
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2. Mr.Anil Shyam Hukumchand,
Age: 52 yearsOcc: Business,
partner of M/s. Hygienic Food Products
Having their office at Plot No.53,
Ancillary Industrial Estate
Near Deonar Slaughter House,
Opposite Manish Pharmaceuticals
Govandi, Deonar, Mumbai400 043.
Residing at Miramar Cooperative
Housing Society Ltd.,
Flat No.401, 4th Floor,
754 Veer Savarkar Marg,
Dadar(W), Mumbai 400 028
3. Mr.Anup Shyam Hukumchand,
Age: 46 yearsOcc: Business,
partner of M/s. Hygienic Food Products
Having their office at Plot No.53,
Ancillary Industrial Estate
Near Deonar Slaughter House,
Opposite Manish Pharmaceuticals
Govandi, Deonar, Mumbai400 043.
Residing at Miramar Cooperative
Housing Society Ltd.,
Flat No.401, 4th Floor,
754 Veer Savarkar Marg,
Dadar(W), Mumbai 400 028
4. Mr.Arun Shyam Hukumchand
Age: 44 yearsOcc: Business,
partner of M/s. Hygienic Food Products
Having their office at Plot No.53,
Ancillary Industrial Estate
Near Deonar Slaughter House,
Opposite Manish Pharmaceuticals
Govandi, Deonar, Mumbai400 043.
Residing at Sai Deep Building, Flat No.705
Sindhi Colony, Chembur (E), Mumbai400 071.
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5. Mr.R.L.Rathi
Age: 66 yearsOcc: Chartered Accountant,
M/s. Rathi & Associates, Chartered Accountants
Having his office at L/39, Dream Mall,
Near Gate No.2, Lal Bahadur Shastri Marg,
Bhandup(West), Mumbai400 078. ..Defendants
__________________________________________________________
Ld. Advocate Martis for plaintiffs.
Ld. Advocate Neha Tikam for defendant Nos.1 to 4
Ld. Advocate Sachin Kadam for defendant No.5
__________________________________________________________
ORAL ORDER
(Dated this 4th day of September,2021)
1. This Notice of Motion is taken out by defendant No.5
praying to reject the plaint under Order 7 Rule 11 of C.P.C.
2. Defendant No.5 submits that plaintiffs and defendant
nos.2 to 4 are legal heirs of lateShyam Hukumchand. They are
partners of defendant no.1 firm. Defendant no.5 is a Chartered
Accountant. He is not interested in the subject matter. There is
no privity of contract between plaintiffs and defendant No.5.
Plaintiffs have not sought any relief against defendant No.5. By
making these submissions, defendant No.5 contended that
plaintiffs be directed to strike off his name as party defendant.
3. It is further submitted that plaint does not disclose
any cause of action against defendant no.5 and therefore plaint is
liable to be rejected.
4. Plaintiffs have strongly resisted the notice of motion
by filing their reply affidavit. It is submitted that defendant No.5
is interested in the subject matter. Defendant No.5 in his written
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statement admitted that since the year 2009, he is looking after
the audit and incometax of defendant no.1. Plaintiffs have
specifically averred actions of defendant No.5. Plaintiffs have
challenged the action of defendant no.5. Plaintiffs are seeking
specific relief against defendant no.5. By making these
submissions, plaintiffs prayed for dismissal of notice of motion.
5. Considered the submissions advanced on behalf of
both the sides.
6. Defendant No.5 submitted that plaintiffs have no
cause of action against him. He prayed to reject the plaint.
7. As per Order 1 Rule 9 of C.P.C., no suit shall be
defeated and the Court may in every suit deal with the matter in
controversy so far as regards the rights and interests of the parties
actually before it.
8. It is well settled that for deciding application under
order 7 Rule 11 of C.P.C. Court has to see the avernments in the
plaint. Plaintiffs have specifically pleaded that they are entitled to
the profits in defendant no.1partnership firm. Defendant nos. 2
to 5 have denied to give Profit and Loss Account Statement of
defendant no.1firm from the year 20082009 to 20162017.
Defendant Nos.2 to 4 with the help of defendant no.5 have
siphoned funds of defendant no.1firm. Plaintiffs have pleaded in
details as to how defendant nos.1 to 5 have siphoned the funds of
defendant no.1firm. Plaintiffs in paragraph No.52(c) specifically
prayed relief as against defendant No.5. Thus, on perusal of the
plaint, it is evident that plaintiffs have challenged the actions of
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defendant no.5. They have also sought reliefs against defendant
no.5. Therefore, I do not find substance in the submission of
defendant no.5 that plaint does not disclose cause of action
against defendant no.5.
9. For all above discussions, notice of motion is liable to
be dismissed with costs. In the result, following order:
ORDER
1. N/M No.275/20 is dismissed with costs.
2. N/M No.275/20 is disposed of accordingly.
04/09/2021 S.U.HAKE
JUDGE,
CITY CIVIL COURT,
GR.MUMBAI.
Dictated on : 04/09/2021
Transcribed on : 04/09/2021
Signed on : 04/09/2021
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CERTIFIED TO BE TRUE AND CORRECT COPY OF THE
ORIGINAL SIGNED JUDGMENT/ORDER”.
04/09/21 at 05.30 pm.
Mrs.Tanushree C.Kamble
Name of the Judge HHJ SHRI SU Hake
Date of Pronouncement of
judgment/order
04/09/21
Judgment and order signed by
P.O.
04/09/21
Judgment/order uploaded on 04/09/21
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